Apr 20, 2014

Posted in Uncategorized

Key Kennedy Question in Hobby Lobby Transcript Modified: “Delegation of Power Rules are somewhat” Moribund, Not More Abundant

Following oral arguments in Hobby Lobby, I drew attention to a key question posed by Justice Kennedy concerning the relationship between the First Amendment and the Non-Delegation Doctrine–can we let administrative agencies decide the scope of the First Amendment?

JUSTICE KENNEDY: Now, what ­­ what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined? I recognize delegation of powers rules are somewhat more abundant insofar as their enforcement in this Court.  But when we have a First Amendment issue of ­­ of this  consequence, shouldn’t we indicate that it’s for the Congress, not the agency to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes.

I explained, “In other words, it may even be outside the ability of Congress to delegate this type of authority to an agency–or at the least, it must be given with some serious guidance.” Adam White also took notice of this question in a cool piece in the Weekly Standard.

But it seems this wasn’t exactly the question Justice Kennedy posed. Adam White, from Lyle Denniston, alerted me to a change in the transcript. The change is in the second sentence above. The words “more abundant” became “moribund.”

Here is the original transcript (p. 56):

more-abundant

I’ve learned that it is the Court’s practice to check with chambers when these questions arise, and in this case the decision was made to change the transcript from “moribund” to “more abundant.” You can see it in the updated transcript (p. 56).


moribund
This makes Kennedy’s point even stronger. It wouldn’t make much sense for the non-delegation doctrine rules to be “more abundant” in this Court. It was largely abandoned during the New Deal. But “moribund” makes even more sense.

JUSTICE KENNEDY: Now, what ­­ what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined? I recognize delegation of powers rules are somewhat moribund insofar as their enforcement in this Court. But when we have a First Amendment issue of ­­ of this consequence, shouldn’t we indicate that it’s for the Congress, not the agency to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes.

Here is the revised question: If you read this corrected sentence in the context of the entire question, he suggests that notwithstanding it’s moribundity, this doctrine should get stronger enforcement in the context of the First Amendment. The nondelegation doctrine, long delegated to the trashcan of constitutional history, has a place when administrative agencies are making decisions that implicate the First Amendment.

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